[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

C. Judicial Selection Model Code of Judicial Conduct Rules 2.10, 2.11, 4.1
Federal and state constitutional and statutory provisions govern judicial selection. The
United States Constitution requires that federal judges be appointed for life with the advice
and consent of the Senate. 1 Alexander Hamilton recommended life tenure as a means to
insulate judges from the “encroachments” of Congress and the “occasional ill humors in the
society.” 2 States have preferred two other methods: merit selection and judicial election.
Canon 4 of the Code of Judicial Conduct regulates a judge’s campaign activity in the
majority of jurisdictions where judicial election is a reality. Rules 4.2-4.5 allow judges to
participate in legally approved campaign committees and activities, but require judges who
become candidates for nonjudicial offices to resign.
Rule 4.1 prohibits judges who campaign for judicial office from using court staff to
campaign or raise money, from seeking endorsements from or making speeches on behalf of
political organizations, and from making “pledges, promises or commitments that are
inconsistent with the impartial performance” of judicial office. 3
The Supreme Court relied on the First Amendment to overturn an earlier version of
this “pledges, promises and commitments” clause that prohibited judicial candidates from
announcing their views on disputed legal and political issues. 4 Comments [11] through
[15] to CJC Rule 4.1 are intended to “encourage adoption of an appropriately narrow
interpretation” of the clause, meaning that a judicial candidate does not compromise
impartiality by announcing personal views as long as the announcement does not
“demonstrate a closed mind on the subject” or include “a pledge or a promise to rule in a
particular way if the matter comes before the court.” 5 However, a judge who “commits or
appears to commit” to a particular result about issues that later come before the court will
be subject to disqualification. 6
Problem
16-3. In a local candidate forum for next fall’s county elections, the moderator asked
the judicial candidates, “What is your opinion on abortion?” “If I had the right case come
before me,” one candidate replied, “I’d overturn Roe v. Wade in a minute. Worst decision
in history, blatant judicial activism,” she continued, as the applause from half the attendees
drowned out the rest of her speech. What happens if she wins?
D. Judicial Election Funding Model Code of Judicial Conduct Rules 4.1-4.4
Williams-Yulee v. The Florida Bar
135 S. Ct. 1656 (2015)
511